SECOND DIVISION

[G.R. No. 176943. October 17, 2008.]

DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO
ALUAD, and CONNIE ALUAD , petitioners, vs. ZENAIDO ALUAD ,
respondent.
DECISION
CARPIO-MORALES, J :
p

Petitioners' mother, Maria Aluad (Maria), and respondent Zenaido Aluad were raised
by the childless spouses Matilde Aluad (Matilde) and Crispin Aluad (Crispin).
ISADET

Crispin was the owner of six lots identied as Lot Nos. 674, 675, 676, 677, 680, and
682 of the Pilar Cadastre, Capiz. After Crispin died, his wife Matilde adjudicated the
lots to herself. 1
On November 14, 1981, Matilde executed a document entitled "Deed of Donation of
Real Property Inter Vivos" 2 (Deed of Donation) in favor of petitioners' mother Maria
3 covering all the six lots which Matilde inherited from her husband Crispin. The
Deed of Donation provided:
That, for and in consideration of the love and aection of the DONOR
[Matilde] for the DONEE [Maria], the latter being adopted and hav[ing] been
brought up by the former the DONOR, by these presents, transfer and
convey, BY WAY OF DONATION, unto the DONEE the property abovedescribed, to become effective upon the death of the DONOR, but in
the event that the DONEE should die before the DONOR, the
present donation shall be deemed rescinded and [of] no further force
and eect; Provided, however, that anytime during the lifetime of the
DONOR or anyone of them who should survive, they could use[,] encumber
or even dispose of any or even all of the parcels of land herein donated. 4
(Emphasis and underscoring supplied)

On September 30, 1986, Original Certicates of Title over Lot Nos. 674 and 676
were issued in Matilde's name.
On August 26, 1991, Matilde sold Lot No. 676 to respondent by a Deed of Absolute
Sale of Real Property. 5
Subsequently or on January 14, 1992, Matilde executed a last will and testament, 6
devising Lot Nos. 675, 677, 682, and 680 to Maria, and her "remaining properties"
including Lot No. 674 to respondent.
Matilde died on January 25, 1994, while Maria died on September 24 of the same

year. 7
On August 21, 1995, Maria's heirs-herein petitioners led before the Regional Trial
Court (RTC) of Roxas City a Complaint, 8 for declaration and recovery of ownership
and possession of Lot Nos. 674 and 676, and damages against respondent, alleging:
That in 1978, plainti[s] possessed the two (2) parcels of land abovedescribed until January 1991 when defendant entered and possessed the
two (2) parcels of land claiming as the adopted son of Crispin Aluad who
refused to give back possession until Matilde Aluad died in [1994] and then
retained the possession thereof up to and until the present time, thus,
depriving the plaintiffs of the enjoyment of said parcels of land . . .;
AcISTE

That after the death of Matilde R. Aluad, the plaintis succeeded by

inheritance by right of representation from their deceased mother, Maria
Aluad who is the sole and only daughter of Matilde Aluad[.] 9

To the complaint respondent alleged in his Answer. 10

That Lot 674 is owned by the defendant as this lot was adjudicated to him in
the Last Will and Testament of Matilde Aluad . . . while Lot 676 was
purchased by him from Matilde Aluad. These two lots are in his possession
as true owners thereof. 11 (Underscoring supplied)

Petitioners later led a Motion for Leave to Amend Complaint Already Filed to
Conform to Evidence 12 to which it annexed an Amended Complaint 13 which cited
the donation of the six lots via Deed of Donation in favor of their mother Maria.
Branch 15 of the RTC granted the motion and admitted the Amended Complaint. 14
Respondent led an Amended Answer 15 contending, inter alia, that the Deed of
Donation is forged and falsied and petitioners' change of theory showed that "said
document was not existing at the time they led their complaint and was concocted
by them after realizing that their false claim that their mother was the only
daughter of Matild[e] Aluad cannot in anyway be established by them"; 16 and that
if ever said document does exist, the same was already revoked by Matilde "when
[she] exercised all acts of dominion over said properties until she sold Lot 676 to
defendant and until her death with respect to the other lots without any opposition
from Maria Aluad." 17
The trial court, by Decision 18 of September 20, 1996, held that Matilde could not
have transmitted any right over Lot Nos. 674 and 676 to respondent, she having
previously alienated them to Maria via the Deed of Donation. Thus it disposed:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1.

Declaring the plaintis as the rightful owners of the subject Lots

Nos. 674 and 676, Pilar Cadastre;

2.

Ordering the defendant to deliver the possession of the subject

lots to the plaintiffs;

3.

Ordering the defendant to pay the plaintiffs:

a.

Thirty thousand pesos (P30,000.00) as attorney's fees;

b.

Twenty thousand pesos (P20,000.00), representing the

income from subject Lot 676, a year from 1991 up to the
time said lot is delivered to the plaintis, together with the
interest thereof at the legal rate until fully paid;
cSaCDT

c.

Ten thousand pesos (P10,000.00), representing the

income from the subject Lot No. 674, a year from 1991
up to the time said lot is delivered to the plaintis, plus
legal interest thereof at the legal rate until fully paid; and

d.

The costs of the suit.

Defendant's counterclaim is ordered dismissed for lack of merit.

SO ORDERED.

19

On petitioners' motion, the trial court directed the issuance of a writ of execution
pending appeal. 20 Possession of the subject lots appears to have in fact been taken
by petitioners.
By Decision 21 of August 10, 2006, the Court of Appeals reversed the trial court's
decision, it holding that the Deed of Donation was actually a donation mortis causa,
not inter vivos, and as such it had to, but did not, comply with the formalities of a
will. Thus, it found that the Deed of Donation was witnessed by only two witnesses
and had no attestation clause which is not in accordance with Article 805 of the Civil
Code, reading:
Art. 805.
Every will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testator's name written by
some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will shall, also sign, as aforesaid, each and
every page thereof, except the last on the left margin and all the pages shall
be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is
written, and the fact that that testator signed the will and every page
thereof, or caused some other person to write his name, under his express
direction, in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of
the testator, and of one another.
If the attestation clause is in a language not known to the witnesses, it shall
be interpreted to them.
ITaESD

While the appellate court declared respondent as the rightful owner of Lot No. 676 ,
it did not so declare with respect to Lot No. 674, as Matilde's last will and testament
had not yet been probated. Thus the Court of Appeals disposed:
WHEREFORE, nding the instant petition worthy of merit, the same is
hereby GRANTED and the Decision of the Regional Trial Court of Roxas City,
Branch 15, dated 20 September 1996, in Civil Case No. V-6686 for
declaration of ownership, recovery of ownership and possession, and
damages is REVERSED and SET ASIDE.
A new one is entered in its stead declaring defendant-appellant as the lawful
owner of Lot [No.] 676 of the Pilar Cadastre. Accordingly, plaintiffs-appellees
are directed to return the possession of the said lot to the defendantappellant.
Moreover, plaintis-appellees are ordered to pay P40,000.00 to defendantappellant as attorney's fees and litigation expenses.
Costs against plaintiffs-appellees.
SO ORDERED.

22

(Emphasis in the original; underscoring supplied)

Their Motion for Reconsideration 23 having been denied, 24 petitioners led the
present Petition for Review, 25 contending that the Court of Appeals erred:
I
. . . WHEN IT REVERSED THE DECISION OF THE COURT BELOW (RTC,
Branch 15, Roxas City) HOLDING THAT THE DEED OF DONATION INTER
VIVOS IN FAVOR OF PETITIONERS' MOTHER IS IN FACT A DONATION
MORTIS CAUSA.
II
. . . WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL OWNER OF LOT
NO. 676 AS LOT BUYER ON THE BASIS OF A DEED OF SALE EXECUTED BY
THE DONOR WHO HAD NO MORE RIGHT TO SELL THE SAME.
AISHcD

III
. . . WHEN IT FAILED TO DECLARE PETITIONERS THE RIGHTFUL OWNER OF
LOT NO. 674 AFTER HAVING RULED WHEN IT HELD THAT RESPONDENT
CANNOT BE DECLARED OWNER THEREOF.
IV
. . . WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF EXECUTION
PENDING APPEAL IS IN VIOLATION OF PARAGRAPH (a) SECTION 2, RULE
39, OF THE RULES OF COURT (AND ORDERING PETITIONERS TO RETURN
POSSESSION OF LOT 676 TO RESPONDENT) AND ORDERING PETITIONERS
TO PAY ATTORNEY'S FEES AND COST[S] OF SUIT. 26

As did the appellate court, the Court nds the donation to petitioners' mother one of
mortis causa, it having the following characteristics:
(1)

It conveys no title or ownership to the transferee before the death

of the transferor; or what amounts to the same thing, that the
transferor should retain the ownership (full or naked) and control of
the property while alive;

(2)

That before the death of the transferor, the transfer should be

revocable by the transferor at will, ad nutum; but revocability may be
provided for indirectly by means of a reserved power in the donor to
dispose of the properties conveyed; and

(3)

That the transfer should be void if the transferor should survive the
transferee. 27 (Emphasis and underscoring supplied)

The phrase in the earlier-quoted Deed of Donation "to become eective upon the
death of the DONOR" admits of no other interpretation than to mean that Matilde
did not intend to transfer the ownership of the six lots to petitioners' mother during
her (Matilde's) lifetime. 28
The statement in the Deed of Donation reading "anytime during the lifetime of
the DONOR or anyone of them who should survive, they could use, encumber or
even dispose of any or even all the parcels of land herein donated" 29
means that Matilde retained ownership of the lots and reserved in her the right to
dispose them. For the right to dispose of a thing without other limitations than
those established by law is an attribute of ownership. 30 The phrase in the Deed of
Donation "or anyone of them who should survive" is of course out of sync. For the
Deed of Donation clearly stated that it would take eect upon the death of the
donor, hence, said phrase could only have referred to the donor Matilde. Petitioners
themselves concede that such phrase does not refer to the donee, thus:
cSATEH

. . . [I]t is well to point out that the last provision (sentence) in the disputed
paragraph should only refer to Matilde Aluad, the donor, because she was
the only surviving spouse at the time the donation was executed on 14
November 1981, as her husband Crispin Aluad [] had long been dead
as early as 1975. 31

The trial court, in holding that the donation was inter vivos, reasoned:
. . . The donation in question is subject to a resolutory term or period when
the donor provides in the aforequoted provisions, "but in the event that the
DONEE should die before the DONOR, the present donation shall be deemed
rescinded and [of] no further force and eect". When the donor provides
that should the "DONEE" . . . die before the DONOR, the present donation
shall be deemed rescinded and [of] no further force and eect" the logical
construction thereof is that after the execution of the subject donation, the
same became eective immediately and shall be "deemed rescinded and [of]

no further force and eect" upon the arrival of a resolutory term or period,
i.e., the death of the donee which shall occur before that of the donor.
Understandably, the arrival of this resolutory term or period cannot rescind
and render of no further force and eect a donation which has never
become eective, because, certainly what donation is there to be rescinded
and rendered of no further force and eect upon the arrival of said
resolutory term or period if there was no donation which was already
effective at the time when the donee died? 32 (Underscoring supplied)

A similar ratio in a case had been brushed aside by this Court, however, thus:
. . . [P]etitioners contend that the stipulation on rescission in case petitioners
[donee] die ahead of [donor] Cabatingan is a resolutory condition that
confirms the nature of the donation as inter vivos .
Petitioners' arguments are bereft of merit.

33

xxx xxx xxx

. . . The herein subject deeds expressly provide that the donation shall be
rescinded in case [donees] the petitioners predecease [the donor] Conchita
Cabatingan. As stated in Reyes v. Mosqueda, one of the decisive
characteristics of a donation mortis causa is that the transfer should be
considered void if the donor should survive the donee. This is exactly what
Cabatingan provided for in her donations. If she really intended that the
donation should take eect during her lifetime and that the ownership of the
properties donated to the donee or independently of, and not by reason of
her death, she would not have expressed such proviso in the subject deeds.
34 (Underscoring supplied)
EaCSHI

As the Court of Appeals observed, ". . . [t]hat the donation is mortis causa is fortied
by Matilde's acts of possession as she continued to pay the taxes for the said
properties which remained under her name; appropriated the produce; and applied
for free patents for which OCTs were issued under her name". 35
The donation being then mortis causa, the formalities of a will should have been
observed 36 but they were not, as it was witnessed by only two, not three or more
witnesses following Article 805 of the Civil Code. 37
Further, the witnesses did not even sign the attestation clause 38 the execution of
which clause is a requirement separate from the subscription of the will and the
axing of signatures on the left-hand margins of the pages of the will. So the Court
has emphasized:
. . . Article 805 particularly segregates the requirement that the instrumental
witnesses sign each page of the will from the requisite that the will be
"attested and subscribed by [the instrumental witnesses]. The respective
intents behind these two classes of signature[s] are distinct from each
other. The signatures on the left-hand corner of every page signify, among
others, that the witnesses are aware that the page they are signing forms
part of the will. On the other hand, the signatures to the attestation clause

establish that the witnesses are referring to the statements contained in the
attestation clause itself. Indeed, the attestation clause is separate and apart
from the disposition of the will. An unsigned attestation clause results
in an unattested will. Even if the instrumental witnesses signed the lefthand margin of the page containing the unsigned attestation clause, such
signatures cannot demonstrate these witnesses' undertakings in the clause,
since the signatures that do appear on the page were directed towards a
wholly different avowal.
. . . It is the witnesses, and not the testator, who are required under Article
805 to state the number of pages used upon which the will is written; the
fact that the testator had signed the will and every page thereof; and that
they witnessed and signed the will and all the pages thereof in the presence
of the testator and of one another. The only proof in the will that the
witnesses have stated these elemental facts would be their signatures on
the attestation clause. 39 (Emphasis and underscoring supplied)

Furthermore, the witnesses did not acknowledge the will before the notary public,
40 which is not in accordance with the requirement of Article 806 of the Civil Code
that every will must be acknowledged before a notary public by the testator and the
witnesses.
More. The requirement that all the pages of the will must be numbered correlatively
in letters placed on the upper part of each page was not also followed. 41
The Deed of Donation which is, as already discussed, one of mortis causa, not having
followed the formalities of a will, it is void and transmitted no right to petitioners'
mother. But even assuming arguendo that the formalities were observed, since it
was not probated, no right to Lot Nos. 674 and 676 was transmitted to Maria. 42
Matilde thus validly disposed of Lot No. 674 to respondent by her last will and
testament, subject of course to the qualication that her (Matilde's) will must be
probated. With respect to Lot No. 676, the same had, as mentioned earlier, been
sold by Matilde to respondent on August 26, 1991.
CASIEa

Petitioners nevertheless argue that assuming that the donation of Lot No. 674 in
favor of their mother is indeed mortis causa, hence, Matilde could devise it to
respondent, the lot should nevertheless have been awarded to them because they
had acquired it by acquisitive prescription, they having been in continuous,
uninterrupted, adverse, open, and public possession of it in good faith and in the
concept of an owner since 1978. 43
Petitioners failed to raise the issue of acquisitive prescription before the lower
courts, however, they having laid their claim on the basis of inheritance from their
mother. As a general rule, points of law, theories, and issues not brought to the
attention of the trial court cannot be raised for the rst time on appeal. 44 For a
contrary rule would be unfair to the adverse party who would have no opportunity
to present further evidence material to the new theory, which it could have done
had it been aware of it at the time of the hearing before the trial court. 45

WHEREFORE, the petition is DENIED.

SO ORDERED.

Quisumbing, Tinga, Velasco, Jr. and Brion, JJ., concur.

Footnotes
1.

Exhibit "G", Records, pp. 172-173.

2.

Exhibit "A", id. at 164-165.

3.

Maria Aluad, as donee, accepted the donation as expressly stated in the deed and
confirmed by her signature thereon (Exhibit "A-3", [vide note 2]).

4.

Exhibit "A-1", id. at 164.

5.

Exhibit "1", id. at 221.

6.

Exhibit "2", id. at 222-223.

7.

Exhibits "B"-"C", id. at 166-167.

8.

Id. at 1-6.

9.

Id. at 3.

10.

Id. at 15-21.

11.

Id. at 18-19.

12.

Id. at 102-104.

13.

Id. at 105-110.

14.

Id. at 121-122.

15.

Id. at 132-139.

16.

Id. at 134.

17.

Id. at 136-137.

18.

Id. at 238-247.

19.

Id. at 246-247.

20.

Id. at 260-261.

21.

22.

EHTISC

TDaAHS

Penned by Court of Appeals Associate Justice Priscilla Baltazar-Padilla, with the

concurrence of Associate Justices Pampio A. Abarintos and Marlene GonzalesSison, CA rollo, pp. 130-146.

Id. at 145-146.

23.

Id. at 155-159.

24.

Id. at 166-167.

25.

Rollo, pp. 18-50.

26.

Id. at 29-30.

27.

Maglasang v. Heirs of Corazon Cabatingan, 432 Phil. 548, 554 (2002); Reyes v.
Mosqueda, G.R. No. 45262, July 23, 1990, 187 SCRA 661, 670-671; Bonsato, et al.
v. Court of Appeals, et al., 95 Phil. 481, 487 (1954).

28.

Ibid.

29.

Exhibit "A-1", records, p. 164.

30.

Vide CIVIL CODE, Article 428: "The owner has the right to enjoy and dispose of a
thing, without other limitations than those established by law . . . ."

31.

Rollo, p. 37.

32.

Records, pp. 242-243.

33.

Maglasang v. Heirs of Corazon Cabatingan, supra note 27 at 553-554.

34.

Id. at 556.

35.

CA rollo, p. 140.

36.

CIVIL CODE, Article 728:

ATcaHS

Donations which are to take eect upon the death of the donor partake of the
nature of testamentary provisions and shall be governed by the rules established
in the Title on Succession.

Alejandro v. Judge Geraldez, 168 Phil. 404, 414-415 (1977).

37.

CIVIL CODE, Article 805.

38.

Exhibit "A", records, p. 165.

39.

Azuela v. Court of Appeals, G.R. No. 122880, April 12, 2006, 487 SCRA 119, 141142. Vide Cagro v. Cagro, 92 Phil. 1032, 1033-1034 (1953).

40.

Exhibit "A", records, p. 165.

41.

Id. at 164-165. Vide CIVIL CODE, Article 805.

42.

RULES OF COURT, Rule 75, Section 1.

43.

Rollo, p. 43.

44.

Vide General Credit Cooperation v. Alsons Development and Investment

Corporation, G.R. No. 154975, January 29, 2007, 513 SCRA 225, 235-236
(citations omitted).

45.

Vide Philippine Ports Authority v. City of Iloilo, 453 Phil. 927, 934 (2003) (citation
omitted).
EICSTa